Note: This page covers information specific to Virginia. For general information concerning defamation, see the general Defamation Law[2] section of this guide.

Elements of Defamation

In Virginia, the elements of a defamation claim are

publication
of

an actionable statement with

the requisite fault on the part of the defendant.

To be “actionable,” the statement must be a false statement of fact that harms the
plaintiff's reputation in the community or deters other persons from
associating with him or her. These elements of a defamation
claim in Virginia are similar to the elements discussed in the general Defamation Law[2] section, with the following exceptions:

Defamation Per Se

Virginia recognizes that certain statements constitute defamation per se[3]. These statements are so egregious that they will always be considered
defamatory and are assumed to harm the plaintiff's reputation, without
further need to prove that harm. In Virginia, a statement that does any
of the following things amounts to defamation per se:

attributes to the plaintiff the commission of some criminal
offense involving moral turpitude, for which the party, if the charge
is true, may be indicted and punished;

indicates that the plaintiff is infected with a contagious disease;

attributes to the plaintiff unfitness to perform the duties
of an office or employment of profit, or lack of integrity in the
discharge of the duties of such an office or employment; or

The Virginia courts generally require a high level of public
activity before a plaintiff becomes a limited-purpose public figure.
The definition of a limited-purpose public figure is covered in the
general Actual Malice and Negligence[5]
section of this guide under the limited-purpose public figures
discussion (scroll down to the topic heading "limited-purpose public
figures"). In Virginia, courts look at the following factors in
determining whether a plaintiff is a limited-purpose public figure:

whether the plaintiff had access to channels of effective communication;

whether the plaintiff voluntarily assumed a role of special prominence in a public controversy;

whether the plaintiff sought to influence the resolution or outcome of the controversy;

whether the controversy existed prior to the publication of the defamatory statements; and

whether the plaintiff retained public figure status at the time of the alleged defamation.

In Virginia, the courts have found the following individuals, among others, to be limited-purpose public figures:

the president of the two charitable organizations because the
charities thrust themselves into the public eye through fund raising
awareness efforts (Chapin v. Knight‑Ridder, Inc.[7]);

a widely-published scientist and self-styled whistleblower who
claimed the National Cancer Institute (NCI) had reversed its official
position on whether a pesticide was carcinogenic (Reuber v. Food Chem. News[8]);

A dolphin scientist who attempted to sell his dolphin
technology to military and nonmilitary industries and who sought to
influence the outcome of a public controversy through brochures and
public statements (Fitzgerald v. Penthouse[9]).

On the other hand, the courts have found the following individuals and organizations, among others, to be private figures:

a university professor who spoke twice in public hearings concerning a public controversy (Fleming v. Moore[4]);

a public school English teacher and short-term, acting
department head whose students complained of her poor teaching
performance to parents and the school principal (Richmond Newspapers v. Lipscomb[10]);

a company engaged in archaeological research for both
government and private entities that was not generally known to the
community and did not seek press regarding a public controversy (Arctic Co., Ltd. v. Loudoun Times Mirror[11]).

Public officials, all-purpose public figures, and limited-purpose
public figures must prove that the defendant acted with actual malice,
i.e., knowing that the statements were false or recklessly disregarding
their falsity. See the general page on actual malice and negligence[5] for details on the standards and terminology mentioned in this subsection.

In Virginia, the precise scope of the fair report privilege[15]
is not clear because all of the cases interpreting it have involved
reports of court proceedings. The privilege covers reports of court
proceedings, including matters stated in court documents, when the
report is made in good faith and substantially accurate.

In Alexandria Gazette Corp. v. West[19], 93 S.E.2d 274, 279 (Va.
1956), the Virginia Supreme Court stated that "[t]he publication of
public records to which everyone has a right of access is privileged,
if the publication is a fair and substantially correct statement of the
transcript of the record." Because the case involved court proceedings
not other government records, this statement would not necessarily bind
later courts, but it is likely that Virginia courts would apply the
privilege to government records open to the public. In that case, you
would be privileged to report on information contained in marriage and
divorce records, birth and death records, and property records, among
other things, in addition to matters reflected in court records and
proceedings.

A few federal courts interpreting Virginia law have applied the
fair report privilege to "governmental actions," like the unofficial
public remarks of a member of Congress, Chapin, 993 F.2d at 1097, and an official letter of
reprimand leaked to the press, Reuber, 925 F.2d at 713.

Statute of Limitations for Defamation

The Virginia Supreme Court has not ruled on whether the single
publication rule applies in the state, although several Virginia circuit courts have cited the single publication rule favorably. See Armstrong v. Bank of Am., 61 Va. Cir. 131, 132 (2003) (noting circuit courts in Fairfax and Richmond, Virginia, that have cited the single publication rule favorably). For a definition of the "single
publication rule," see the Statute of Limitations for Defamation[22] section. One federal appeals
court applying Virginia law upheld application of the single
publication rule, reasoning that a great majority of states now follow
it. Morrissey v. William Morrow & Co., Inc.[23], 739 F.2d 962, 967 (4th
Cir. 1984).

The CMLP could not locate any cases in Virginia that apply the
single publication rule in the context of a statement published on the
Internet. If you are aware of any Virginia cases that acknowledge the
single publication rule in the Internet context, please notify us[20].